Algee v. Nordstrom, Inc., No. 4:2011cv00301 - Document 47 (N.D. Cal. 2011)
Court Description: ORDER GRANTING DEFENDANTS 35 MOTION FOR LEAVE TO FILE AMENDED OR SUPPLEMENTAL ANSWER. Amended Pleadings due by 1/5/2012. Signed by Judge Claudia Wilken on 12/27/2011. (ndr, COURT STAFF) (Filed on 12/27/2011)
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Algee v. Nordstrom, Inc. Doc. 47 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 BRIAN ALGEE, individually and on behalf of all others similarly situated, 6 7 8 Plaintiff, v. NORDSTROM, INC., 9 United States District Court For the Northern District of California 10 No. C 11-301 CW ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO FILE AMENDED OR SUPPLEMENTAL ANSWER (Docket No. 35) Defendant. ________________________________/ 11 12 Defendant Nordstrom, Inc. moves for leave to file an amended 13 or supplemental answer to Plaintiff Brian Algee’s complaint. 14 Plaintiff opposes this motion. 15 presented in the papers and at oral argument, the Court GRANTS 16 Having considered the arguments Defendant’s motion. 17 BACKGROUND 18 19 On December 21, 2010, Plaintiff filed this action, on behalf 20 of himself and a putative class of salaried Executive Chefs, in 21 the Superior Court of the State of California, in San Francisco 22 County. 23 violated California state law by failing to pay overtime 24 In his complaint, Plaintiff alleges that Defendant compensation and meal and rest period compensation, failing to 25 provide accurate wage statements, failing to pay compensation 26 27 28 timely upon termination of employment or voluntarily separation and unfair business practices amounting to unfair competition. Dockets.Justia.com 1 The putative class encompasses persons whom Defendant employed as 2 Executive Chefs in one or more Nordstrom restaurants in California 3 at any time on or after December 17, 2006. 4 5 6 On January 19, 2011, Defendant filed an answer and affirmative defenses in state court. The following day, Defendant removed this action to this Court pursuant to its diversity 7 jurisdiction. 8 9 On July 14, 2011, this Court held a case management United States District Court For the Northern District of California 10 conference and set that date as the deadline to add additional 11 parties or claims. 12 13 14 In late August 2011, Defendant implemented a new policy requiring that all current employees arbitrate on an individual basis all “past, present, and future disputes” with Nordstrom 15 regarding their employment relationship, including claims related 16 to “unfair competition, compensation, breaks and rest periods.” 17 18 19 20 21 22 23 Defendant now seeks to amend or supplement its answer to assert defenses related to its new arbitration policy. LEGAL STANDARD Generally, Federal Rule of Civil Procedure 15(a) provides for liberal allowance of amendments to pleadings. However, because Defendant moved to file an amended answer on October 14, 2011, 24 three months after the deadline established under the case 25 26 management order, Rule 16(b) applies. 27 Under Rule 16(b), “[a] schedule shall not be modified except 28 upon a showing of good cause and by leave of the district judge.” 2 1 Fed. R. Civ. Pro. 16(b). Where a schedule has been filed, the 2 plaintiff's ability “to amend his complaint [is] governed by Rule 3 16(b), not Rule 15(a).” 4 F.2d 604, 608 (9th Cir. 1992). 5 amend a pleading after the date specified in a scheduling order 6 Johnson v. Mammoth Recreations, Inc., 975 Therefore, a party seeking to must first show “good cause” for the amendment under Rule 16(b), 7 and second, if good cause is shown, the party must demonstrate 8 9 United States District Court For the Northern District of California 10 that the amendment is proper under Rule 15. Id. In order to determine whether good cause exists, courts 11 primarily consider the diligence of the party seeking the 12 modification. 13 232 F.3d 1271, 1294 (9th Cir. 2000). 14 Id. at 609; see also Coleman v. Quaker Oats Co., “[N]ot only must parties participate from the outset in creating a workable Rule 16 15 scheduling order but they must also diligently attempt to adhere 16 to that schedule throughout the subsequent course of the 17 18 litigation.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 607 (E.D. 19 Cal. 1999). 20 must therefore show it was diligent in assisting the Court to 21 create a workable schedule at the outset of litigation, that the 22 scheduling order imposes deadlines that have become unworkable 23 A party moving for an amendment to a scheduling order notwithstanding its diligent efforts to comply with the schedule, 24 and that it was diligent in seeking the amendment once it became 25 26 apparent that extensions were necessary. Id. at 608. 27 Federal Rule of Civil Procedure 15(a) provides that leave of 28 the court allowing a party to amend its pleading “shall be freely 3 1 given when justice so requires.” Because “Rule 15 favors a 2 liberal policy towards amendment, the nonmoving party bears the 3 burden of demonstrating why leave to amend should not be granted.” 4 Genentech, Inc. v. Abbott Laboratories, 127 F.R.D. 529, 530-531 5 (N.D. Cal. 1989) (citing Senza-Gel Corp. v. Seiffhart, 803 F.2d 6 661, 666 (Fed. Cir. 1986)). Courts generally consider five 7 factors when assessing the propriety of a motion for leave to 8 9 amend: undue delay, bad faith, futility of amendment, prejudice to United States District Court For the Northern District of California 10 the opposing party and whether the party has previously amended 11 the pleadings. 12 1051, 1055 n.3 (9th Cir. 2009). 13 inquiry essentially incorporates the other factors, “if a court 14 Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d Because Rule 16(b)'s “good cause” finds that good cause exists, it should then deny a motion for 15 leave to amend only if such amendment would be futile.” Thompson 16 v. City of Redding, 2011 U.S. Dist. LEXIS 69645, at *3 n.2 (E.D. 17 18 Cal.). However, “a proposed amendment is futile only if no set of 19 facts can be proved under the amendment to the pleadings that 20 would constitute a valid and sufficient claim or defense.” 21 v. Rykoff-Sexton, 845 F.2d 209, 214 (9th Cir. 1988); Bonin v. 22 Calderon, 59 F.3d 815, 845 (9th Cir. 1995). 23 Miller DISCUSSION 24 Plaintiff argues that good cause does not exist and that 25 26 amendment would be futile. 27 28 4 1 I. Good Cause Plaintiff does not dispute that Defendant acted with 2 3 diligence in seeking this amendment. 4 Mobility, LLC v. Concepcion, 131 S. Ct. 1740 (2011), the Supreme 5 Court held that the California Supreme Court’s Discover Bank1 Earlier this year, in AT&T 6 rule, which provided that class-action waivers in consumer 7 8 9 contracts of adhesion were unconscionable in cases where a party with superior bargaining power was alleged to have cheated large United States District Court For the Northern District of California 10 numbers of consumers out of individually small sums of money, was 11 pre-empted by the Federal Arbitration Act (FAA). 12 Defendant explains that, in response, it revised its employee 13 arbitration agreement to include a class action waiver, in or 14 around August 2011. Mot. at 3. Id. at 1753. On September 30, 2011, Defendant 15 asked Plaintiff to stipulate to Defendant’s filing of an amended 16 17 answer. On October 11, 2011, Plaintiff refused to stipulate. 18 Three days later, on October 14, 2011, Defendant filed the instant 19 motion. 20 diligence in seeking to amend its answer. 21 II. 22 Accordingly, it appears that Defendant acted with Futility Plaintiff argues that amendment would be futile, because he 23 himself is not bound by the revised policy, in that his employment 24 25 26 with Defendant terminated in September 2010, almost a year before the new policy was promulgated. However, as Defendant points out, 27 1 28 Discover Bank v. Superior Court, 36 Cal. 4th 148 (2005). 5 1 Plaintiff is seeking to pursue his claims on behalf of a class 2 that includes individuals who are currently employed by Defendant 3 and who may be bound by the new policy. 4 any authority supporting that Defendant cannot assert a defense in 5 his answer that only applies to some putative class members. 6 Plaintiff does not cite Plaintiff makes no other argument that there is no set of 7 facts under which the amendment to the pleadings would constitute 8 9 a valid and sufficient defense. Instead, Plaintiff makes United States District Court For the Northern District of California 10 arguments that focus on whether the relevant arbitration agreement 11 in this case in fact compels arbitration in this lawsuit. 12 support that this is an appropriate inquiry, Plaintiff relies on a 13 single case, Mannick v. Kaiser Found. Health Plan, Inc., 2005 U.S. 14 Dist. LEXIS 40405 (N.D. Cal.). To However, Plaintiff misstates what 15 the court found in that case. In Mannick, the court was 16 simultaneously presented with a motion to compel arbitration and a 17 18 motion to amend the answer. The court addressed the motion to 19 compel arbitration first and examined the evidence presented to 20 find that the claims asserted in the lawsuit were not covered by 21 the arbitration agreement. 22 motion because the defendants had no right to compel arbitration. 23 Id. Id. at *13-15. The court denied the The court then considered the motion to amend the answer and 24 concluded that, “as the court has denied the motion to compel 25 26 arbitration, the issue is moot.” Id. at *16. The court in 27 Mannick did not determine whether the defendants would be 28 ultimately successful on the defense in order to decide the motion 6 1 to amend the answer, but considered this instead to decide the 2 motion to compel arbitration. 3 which a court, in the context of a motion to amend the pleadings, 4 made a determination of whether the defendants would ultimately be 5 able to prevail on a defense, instead of assessing whether it 6 Plaintiff cites no other case in would be possible for the defense to be proven under any set of 7 facts. Thus, Plaintiff’s remaining arguments, which go to whether 8 9 Defendant will ultimately be able to prevail on this defense, are United States District Court For the Northern District of California 10 more appropriately raised in the context of a motion to compel 11 arbitration. 12 13 14 CONCLUSION For the reasons set forth above, the Court GRANTS Defendant’s motion for leave to file an amended or supplemental answer. 15 Defendant shall file its amended or supplemental answer by January 16 5, 2012. 17 18 IT IS SO ORDERED. 19 20 21 Dated: 12/27/2011 CLAUDIA WILKEN United States District Judge 22 23 24 25 26 27 28 7
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